Wednesday, June 27, 2012

U.S. Sales of Samsung Galaxy Tab 10.1 Blocked by Preliminary Injunction Because of Patent Suit : Infringement Actions As THE Legal Weapon of Choice to Block Potential Competition

We wrote some very positive things about U.S. District Judge Lucy H. Koh previously on LawPundit, but we herewith take them all back after reading of her foolish issuance of a preliminary injunction whereby Apple wins ruling blocking U.S. sales of Samsung Galaxy Tab 10.1 (Andrea Chang at the Los Angeles Times reports).

The jurisprudential idea that any company would be "irreparably harmed" by legitimate competition remains one of the judicial mysteries of this century. Patents were not intended to make companies immune from competing products.

Issuing preliminary injunctions in patent cases is just about as stupid an action that can possibly be taken by any court, since it opens the floodgates for similar actions in ANY patent case, for -- one must ask -- what distinguishes the market harm to be expected here from ANY other patent infringement suit. The answer is: nothing.

Are we now entering a world in which a patent suit is often going to be enough to block any competing product import that has any resemblance to a domestic product?

If actual harm is wrongfully caused -- it should be litigated based on the actual market data -- after the fact. Law is not in the crystal-balling business -- but that is not keeping some courts from playing the sorcerer's apprentice.

Apparently Judge Koh is unable to see that this is all part of a monopolist's plan to get rid of as much competition as it can by keeping competing products off the market as long as it can, using well-meaning myopic judges as their vehicle.

Continuing this campaign of using U.S. courts as the fall guy, Apple has now also sued Samsung to keep the Galaxy S III smartphone off the market in the United States, a product already introduced to the European market.

But in America, no one is going to copy THEIR (Apple) phone, with its distinctive features - rounded rectangular corners, two surfaces (top and bottom), four sides (top, bottom, left, right), one bezel (around the whole thing, to hold the screen), various and sundry command icons (see my book Ancient Signs for the origins of man's communicative symbols). Black surfaces. Minimal -- non-existent -- design. Yup. REAL inventions. No doubt about it. LOL.

Gee, and wasn't the guy who actually invented the telephone somebody named Alexander Graham Bell? and not SJ? Sort of like ancient drums and smoke signals as communicative devices, what not? Basic inventions go WAY BACK in time, folks. Some American company did not invent them.

Besides, why should someone be able to steal the word "apple" from us, the people, for commercial use?  "Apple" belongs to us, "we the people", not to some company.

And isn't the word "phone" in a term like iPhone STOLEN from us, the people, just like PAD, TABLET or the new digital term RETINA -- all stolen, copied, pilfered, looted, with not a cent going to the community of citizens and the language from which it was appropriated?

Why should that be "for free" while obscure patents bring billions?
WHY? as a matter of law? Ridiculous.

We see no logical reason. It is a system for fools.

Anyone who thinks that these patent suits are about design and patent infringements and patent licensing fees and royalties is living in a dream world.

These legal matters are all about economic barriers to entry and protective barriers to trade via the use of the apparently totally overwhelmed domestic courts and judges and via the antiquated American legal system, which grants "home court legal advantages" to its own companies.

We are waiting for comparable favorable treatment of "foreign" companies, but what we read in American news is:
NO IMMIGRATION.
NO IMPORTS.

The vector of direction in America is clear.
But do not confuse this with the rule of law.

By the way, we ourselves have no brand interest here because we buy neither Apple nor Samsung phones or tablets, which are all overhyped and overpriced at both companies.

We buy at Chinavasion.
This is not ad.
We speak from experience.


Judge Richard A. Posner Goes After L'Enfant Terrible U.S. Supreme Court Justice Scalia for "Fighting Words" in Immigration Case

Judge Richard A. Posner goes after L'enfant Terrible U.S. Supreme Court Justice Scalia in today's Slate Magazine Entry 11 (from Posner to Walter Dellinger and Dahlia Lithwick) titled:

Supreme Court Year in Review: Justice Scalia offers no evidence to back up his claims about illegal immigration

writing that Scalia has uttered fighting words in Scalia's purely "political" claim that the federal government is "refus[ing] to enforce the Nation's immigration laws". As Posner notes:
"The program that appalls Justice Scalia was announced almost two months after the oral argument in the Arizona case. It seems rather a belated development to figure in an opinion in the case."
Furthermore, Posner challenges Scalia's claim that Arizona is bearing the "brunt" of the immigration problem, whereas, as Posner writes:
"As of last year there were estimated to be 360,000 illegal immigrants in Arizona, which is less than 6 percent of the Arizona population—below the estimated average illegal immigrant population of the United States. (So much for Arizona's bearing the brunt of illegal immigration.)".
This is definitely a must read at Slate Magazine because it highlights a form of "judicial activism" on the U.S. Supreme Court -- this time on the conservative side of the political spectrum -- which greatly detracts from law and judging.

We are not soft on illegal immigration by the way, not at all. We just do not support the political judging we too often see on the Supreme Court. In our view, you might deal best with illegal immigration by passing stiff federal penalties against those who HIRE illegal immigrants as a source of cheap labor. That would take care of a large part of the problem. Where there is no work, there are no illegal workers. Go to the source of problem: exploitation.

At the same time, as we wrote in the posting referred to below, America should think about getting state-of-the-art identity cards for its citizens so that they know who is who in their own country and do not have to rely on police stops and arrests to find out who is and who is not in the country legally -- or they could of course ask the mobile phone companies, who not only know who is in the country, but can theoretically track their every move. The whole legal picture in the USA on this score is medieval.

We posted previously about the Arizona Immigration law case at LawPundit in Arizona Immigration Law Rejected by U.S. Supreme Court as to Usurpations of Federal Powers but Upheld as to Law Enforcement Officials Right to Ask Persons Stopped or Arrested for Papers: The Terrible Trio Disagrees, finding that the dissenters' opinions could go in the wastebasket of legal garble, and we are glad to see that Posner essentially agrees.

What a shame it is that such a talented judge like Posner must sit on the sidelines while jurisprudential "pretenders" like Scalia, Alito and Thomas "warm their seats" on the bench and issue opinions which have little to do with law and everything to do with politics, as Posner cogently elucidates.

Circumcisions of Young Children for Religious Reasons Ruled Illegal Bodily Harm by German Regional Court

Jews and Muslims on the same side of a legal issue regarding religion?

Is circumcision of defenseless juveniles by zealous adults a religious right?

Not according to a decision just handed down by German regional court in Cologne, Germany.

Deutsche Welle has the story at German regional court outlaws child circumcisions, writing:
"A court in Cologne has ruled that circumcising young children for religious reasons causes grievous bodily harm and is illegal, even with parental consent. Jewish and Muslim organizations have blasted the decision.

The regional court in the western city of Cologne ruled on Tuesday that child circumcision constituted "illegal bodily harm," even with parental consent. In the verdict, the court said that the "fundamental right of the child to bodily integrity outweighed the fundamental rights of the parents."
Nicholas Kulish at the New York Times in German Ruling Against Circumcising Boys Draws Criticism writes:
"Germany has no law against male circumcision, as there is against female genital cutting. Experts said that the decision would not be enforceable in other jurisdictions. But the legal uncertainty and threat of possible prosecution could lead doctors to decline to perform the procedure."
So why should males be genitally cut and females not? Genital cutting can not be legal for one sex and not the other.

As far as modern legal principles of human rights in the Western world are concerned, this German court decision is absolutely correct as a matter of law. No other legal result is possible as far as human rights are concerned.

"Freedom of religion" can not serve as a justification for the imposition of bodily harm on others.

Freedom of religion means that human beings, when they get to be legally independent adults, can choose the religion THEY want for THEMSELVES.

Permitting physical mutilation of children by parents or other adults just because THEIR religion historically permits it, in no way justifies inflicting bodily harm on children who, when they are able to choose, may in fact select a different religious path than that followed by their parents. Circumcision FORCES a given religion on a child.

Irreversible physical mutilation via circumcision is a forced bodily harm on young people who are unable to defend themselves, thus marking them for life at a time when they can give no legal consent or otherwise defend themselves. That is obviously clearly wrong as a matter of law.

People should have the right to worship the God they choose - for THEM.

Whenever religion means that OTHERS are implicated, that is no longer religion at all, but simple tyranny of one human being over another.

Our modern world suffers daily because of religious superstitions handed down over the centuries by the various established religions and these superstitions are blindly followed by people who otherwise consider themselves to be moderns.

Our daily news screens are filled with atrocities committed in the name of religion, as if religion excused them, which it can not.

Quite the contrary, if there is a God Almighty, those will be punished, by God.

Law is not a handmaiden of religion.

If men or women are answerable to GOD, then they are personally answerable to THEIR OWN GOD, not to someone else's God, nor are human beings placed on this Earth to be victims to someone else's religious rites, rituals or beliefs.

People like Thomas Becket never understood this.

We can all be thankful in Western Civilization to King Henry II of England, whose legal reforms contra to religious influence and traditions led to the modern system of common law (and its spin-offs, such as the US legal system) via an increasing separation of Church and State.

Let God rule the heavenly realms. On Earth, we have the "rule of law". This was the principle philosophy of the Protestant Reformation in Christianity, which began in Germany and enabled our modern world. As written at the Wikipedia:
"At the beginning of the Protestant Reformation, Martin Luther articulated a doctrine of the two kingdoms. According to James Madison, perhaps one of the most important modern proponents of the separation of church and state, Luther's doctrine of the two kingdoms marked the beginning of the modern conception of separation of church and state.[5]

In the 1530s Henry VIII, angered by the Catholic Church's refusal to annul his marriage with his wife Catherine of Aragon, decided to break with the Church and set himself as ruler of the new Church of England, the Anglican Church...."
The foundations of the Reformation are to be sought in the reign of Henry II, who we have always regarded to be England's greatest king, for his reign was a landmark in the beginning of the progressive reform of an antiquated world. As written at the Wikipedia about Henry's reign:
"Henry's reign saw significant legal changes, particularly in England and Normandy.[170][nb 21] By the middle of the 12th century, England had many different ecclesiastical and civil law courts, with overlapping jurisdictions resulting from the interaction of diverse legal traditions. Henry greatly expanded the role of royal justice in England ...
... Henry was prepared to take action to improve the existing procedures, intervening in cases which he felt had been mishandled, and creating legislation to improve both ecclesiastical and civil court processes.[180] ... Between 1159 and 1163, Henry spent time in Normandy conducting reforms of royal and church courts and some measures later introduced in England are recorded as existing in Normandy as early as 1159.[183]
In 1163 Henry returned to England, intent on reforming the role of the royal courts.[184] He cracked down on crime, seizing the belongings of thieves and fugitives ...  Henry created the General Eyre, probably in 1176, which involved a dispatching a group of royal justices to visit all the counties in England over a given period of time, with authority to cover both civil and criminal cases.[187] Local juries had been used occasionally in previous reigns, but Henry made much wider use of them.[188] ... After the Assize of Clarendon in 1166, royal justice was extended into new areas through the use of new forms of assizes ... In making these reforms Henry both challenged the traditional rights of barons in dispensing justice and reinforced key feudal principles, but over time they greatly increased royal power in England.[191][nb 23]" ...
[A] main source of conflict [was the Roman Catholic Church and] concerned the treatment of clergy who committed secular crimes: Henry argued that the legal custom in England allowed the king to enforce justice over these clerics, while Becket maintained that only church courts could try the cases."
The issue today is the same. The "rule of law" and religious practices are in conflict, and, of course, the rule of law must win.

The modern world only became possible when the temporal affairs of mankind were separated from man's belief systems. As we often are apt to say, "belief is the absence of fact". When things are "known" to be true, they are no longer religion, belief or faith. They are known. Religion must thus be kept separate from temporal life. Religion deals with the unknowable.

The progressive reforms initiated during the reign of Henry II paved the way for the British Empire, for the establishment of English as the lingua franca of the world, and for the legal separation of Church and State, increasingly freeing mankind to better develop innate talents and abilities, such as were enshrined in the preamble to the American Declaration of Independence:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,[76] that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security." [emphasis added]
Circumcision of defenseless juveniles is one of those long trains of abuse and usurpation, committed by religions as "religious governments", as it were, who are forcing their tyrannies on others.

Indeed, the pervasive negative influence of the religions on daily events continues unabated. Wherever you look, the religions are creating strife and conflict everywhere where they have influence, rather than working for and achieving the betterment of life on this planet for Earth's inhabitants.

Our view is universal and applies to ALL religions, who should stay out of temporal affairs. We might add here that America currently has 6 Catholics and 3 Jews as Justices on the U.S. Supreme Court, out of 9 judges -- i.e. there are no Protestants at all on the nation's highest court, for a nation in which the majority of the population is Protestant.

All 9 of these Justices represent religions and ways of looking at the world that have been overthrown -- successfully -- since the Protestant Reformation by modern temporal philosophies and religions. Some commentators say religion is irrelevant to the Supreme Court -- but the actual court DECISIONS speak another tale, as this court has been judged to be the most conservative in decades. We would say -- what else did you expect?

As long as such major institutions as the U.S. Supreme Court, whether in the USA or elsewhere, are controlled by people whose entire background has inculcated them with backward and antiquated religious, moral, legal, philosophical and personal ideas out of long-gone centuries or past millennia, you can not reasonably expect much progress in law, economics or society in the countries of those institutions -- and indeed, things in many places on our planet are going backward, rather than forward.

The battle that Henry II of England waged still goes on....
make no mistake about that.


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